From Moree to Mabo: The Mary Gaudron Story

Since Dame Roma Mitchell’s appointment to the Supreme Court of South Australia in 1965, women have slowly but surely claimed their rightful place as part of the Australian judiciary. Since 1987, with the exception of a short period between 2003 and 2005, a woman has sat on our highest court — the High Court of Australia.

The first woman to do so was Mary Gaudron.

Pamela Burton’s engaging biography From Moree to Mabo: The Mary Gaudron Story does more than review a judicial career; it reviews a judicial life. This is fitting, as Burton’s work skillfully highlights, because for Mary Gaudron — like so many other women, both then and now — a strict demarcation between the demands of professional life and personal life did not exist.

Burton fuses the personal and the professional throughout the book. She opens with a prophetic account of how an eight-year-old Mary Gaudron was sent a copy of the Australian Constitution by Doc Evatt following a chance encounter between the two on one of his campaign tours that brought him to her home town of Moree in 1951. From there, Burton traces Gaudron’s academic career — from her scholarship-funded Catholic boarding school education, to her arrival at Sydney University Law School. The anecdotal accounts of Gaudron’s time at Sydney University are as astounding as they are inspiring. Burton describes how Gaudron sat, and topped, notoriously difficult law school exams while nine months pregnant with her first child; cajoled students and professors alike (such as Professor Julius Stone) into ad hocchild-minding services in the Women’s Common Room (a room which formally served as the men’s urinal) while she attended lectures; all the while engaging in full-time paid work. Despite this workload, Gaudron’s brilliance was recognised with her receipt of the University Medal in Law upon graduation in 1965. This is the stuff legends are made of and clearly illustrates the stuff that Gaudron was made of: fierce determination, outstanding intellect and a whole lot of fight. These chapters, and those that follow tracing Gaudron’s entry into the Sydney Bar, also serve to provide an intriguing yet unflattering historical insight into the culture of these two prestigious and influential institutions and the challenges that women faced when they dared to enter ‘a boys’ domain’.

Chapters four to nine traverse the lesser known parts of Gaudron’s legal career. These are perhaps the most interesting of the book. Burton traces Gaudron’s early days at the Sydney Bar, from her initial struggle to be accepted into chambers ‘because it was felt that the company of a women on the floor would be either disruptive or, at the least, uncongenial’ (p 78), to her advocacy triumphs for Pat Mackie on defamation charges against Consolidated Press, and the 1974 National Wage Case which served to extend the minimum wage to female workers. Gaudron’s time on the Australian Conciliation and Arbitration Commission and her dramatic yet principled resignation from it in 1980, motivated by her disapproval of the treatment of her colleague, Jim Staples, by the Commission’s president, Sir John Moore, acutely highlights Gaudron’s fierce loyalty and moral conviction. This conviction would again be evident in her unequivocal support of her High Court colleague, Justice Michael Kirby in 2002 following Liberal Senator Bill Heffernan’s erroneous allegations of misuse of official cars (p 340–1).

The second half of this biography concentrates on Gaudron’s ‘firsts’: in 1981 she was appointed as the NSW Solicitor-General, being the first women (and at the age of 38, one of the youngest people) to be appointed to such a post in any jurisdiction in Australia. Then, in 1987, Prime Minister Hawke appointed Gaudron as a justice of the High Court of Australia, making her the first woman in Australia to serve in this esteemed position. Two momentous firsts, but, in neither case, as Burton makes abundantly clear, can Gaudron’s contributions to these posts be essentialised down to her gender, despite the enormity of the symbolic significance.

Gaudron’s 16 years on the High Court were a turbulent, yet transformative time for Australian law. Burton highlights Gaudron’s contribution to many landmark constitutional cases including the native title cases of Mabo and Wik, the implied freedoms cases, and Dietrich v The Queen considering the constituents of the right to a fair trial. Her jurisprudential style, particularly in cases concerning equality, Indigenous rights and anti-discrimination law was distinctive. Burton concludes that this distinctiveness was a reflection of who Gaudron was — ‘as a mother, a wife, a child of a working-class father, a woman and as a thoughtful individual with a forceful personality, Gaudron brought a different perspective to the High Court, as judges from different walks of like are expected to do’ (p 349). Anecdotal tales, such Gaudron’s furious response to a high profile (male) QC who submitted in the context of a controversial ‘wrongful birth’ claim that having the child adopted should be a means of mitigating the damages claimed by the mother (p 351), provide striking examples of her distinctive contribution to the judicial role.

Burton has done extensive research for this biography. As her lengthy list of interviewees and contacts attests, she has been fortunate to have access to some remarkable empirical research sources. This list includes current Justices of the High Court; former Justices and Chief Justices; politicians; influential QCs and academics; family members; and even a former Prime Minister. However, one source is conspicuously absent — Mary Gaudron herself. Burton draws attention to this omission in her acknowledgments, explaining that:

[t]his biography is not in any sense authorized. The Hon. Mary Gaudron, QC, was not interviewed; she did not assist the project nor allow access to personal papers. She explained her dread of biographies. It became clear that as a justice of the High Court, she held an optimistic view of the future, was motivated to use the law to improve people’s lives and was not interested in dwelling on the past (p xv).

From the reader’s point of view, this is unfortunate. Mary Gaudron has been a prolific writer and speaker (attested to by the three pages in Burton’s bibliography dedicated to works by Mary Gaudron). Her subject matter has never shied away from reflections on the personal. While anecdotes of ‘Mary the Merciless’ recounted by colleagues, friends and family are entertaining, as all good lawyers know, hearsay is never as reliable as original testimony.

The desire of judges and all those in public office to shelter themselves from preying eyes is understandable. The recent debates in the United Kingdom over the extent that public figures can and should be shielded from the public glare is one that is currently hotly being contested over the question of super-injunctions. However, this book, as judicial biography in general, raises a broader question: Why does it matter that we, the public, know who judges are? And why should the personal backgrounds of the judiciary — an unelected, independent and impartial body charged with determining matters according to law — be of any interest?

Works such as this book deliver by shining a light on outstanding role models for current and future generations of practitioners. However, perhaps its most important contribution is to add to the humanisation of the judiciary. Unmasking the men and women who exercise considerable amounts of power, yet who operate in a world foreign to and impenetrable by most, can have a profound impact on the legitimacy of the institution. The importance of greater public understanding of supreme law-making institutions, and those who constitute it, is well understood in other common law jurisdictions, including the United Kingdom and South Africa. For example, the newly constituted UK Supreme Court has engaged in a series of ‘public relations’ exercises, including the production of a candid documentary to reassure the public that ‘we [the Justices] are ordinary people. We live ordinary lives’.1 In Australia, while Chief Justice French has made a concerted effort to increase public access to the High Court and to support ‘educational activities to improve public awareness and understanding of its constitutional role’,2 more should be done to further the public’s understanding of those who constitute the court.

Lord Reid famously stated: ‘There was a time when it was thought almost indecent to suggest that judges make law — they only declare it. … But we do not believe in fairy tales anymore’.3 However, there remains one such fairytale to be exposed: that the identity of the judge does not matter.4 No matter how attractive the idea may be, the fact remains, there is no judicial ‘black box’, impenetrable from external influences, from within which a judge can make judicial decisions. Particularly not for a High Court charged with the maintenance and interpretation of the Constitution. Impartial? Yes, but neutral? No. Judicial interpretation, the application of law to facts, by its very nature, no matter how principled and firmly rooted in statute or case law, is part of a human process. This is particularly true in relation to laws that are open-textured in nature and therefore require, to some extent, the decision maker to rely, consciously or subconsciously, on their point of view when reasoning. To state the obvious, judges are people, and their lives and careers will impact upon the point of view that they bring when undertaking their judicial functions. This is particularly so for those charged with making decisions that are of fundamental importance to the lives of everyday Australians. Everyday Australians should have the opportunity to learn about those who make such decisions.

In this biography, Burton does just that as she honours the very human contribution that Mary Gaudron has made to Australian public life, as a barrister, as a judge, and as the girl from Moree.

LAURA HILLY is currently undertaking doctoral research at the University of Oxford with the support of a Rhodes Scholarship and a Clarendon Scholarship. Thank you to Nikolas Kirby for his helpful comments on this review.

REFERENCES

1. Lord Phillips, President of the Supreme Court, ‘The Highest Court in the Land: Justice Makers’, BBC 4, first screened 27 January 2011. See also Anita Davies, ‘Lights, Camera, Action: The Supreme Court on Film’ The UK Supreme Court Blog (4 February 2011) http://ukscblog.com/lights-camera-action-the-supreme-court-on-film at 11 July 2011. In relation to the South African experience see Courting Justice (created by Ruth Cowan, Luna Films, 2008).2. High Court of Australia, Annual Report (2009–2010) 10.3. Lord Reid, ‘The Judge as Law Maker’ (1972) 12 Journal of the Society of Public Teachers of Law 22.4. See Erika Rackley, ‘Representation of the (Woman) Judge – Hercules, the Little Mermaid, and the Vain and Naked Emperor’ (2002) 22 Legal Studies 602.